Department applies for parenting orders

Department applies for parenting orders

Eliot & Dent and Anor [2016] FamCA 128 (3 March 2016)

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/128.html

Background

25. At the time of trial the father was nearly 41 years of age and the mother nearly 31 years of age.
26. The parents’ relationship commenced in early 2006 and finished some time during 2011 or 2012 although as observed by the family consultant it was “a fairly volatile on-again off-again scenario”.
27. The three children are the only children of the relationship between the mother and father. The mother has an older child G born when she was 17 years of age. Both parents had extensive problems with substance abuse prior to their relationship and somewhat regrettably they met when they were attending the same methadone clinic in about 2006.
28. The mother and father continued on methadone throughout their relationship and the father used other drugs extensively during the same period. The mother to the family consultant asserts that the relationship was heavily characterised by the father’s domestic violence and controlling nature as well as his ongoing heroin use. For his part the father conceded verbally abusive behaviour but rejected allegations of physical violence, claiming that the mother was in fact violent towards him.
29. Both parents have an extensive criminal history with a range of various convictions and each of them has spent a number of periods in custody. Major convictions relate to repeated shoplifting and theft, presumably to fund their drug habit.
30. The mother asserted to the family consultant that the father suffered from mental illness and emotional instability throughout the relationship. The father denies this but has had an extensive history of stays in hospital and in the psychiatric wing of a prison hospital with significant reference to a diagnosis of paranoid schizophrenia.
31. Following an early separation orders were made in December 2010 for a substantially shared care arrangement that continued thereafter for about three months until the father was incarcerated for a period of six months from February 2011 until August 2011. The father for his part asserts some sort of reconciliation thereafter but that suggestion is rejected by the mother.
32. In July 2012 the mother relocated the children to H Town in regional New South Wales. The father remained living in Sydney. The mother’s change of circumstances resulted in the orders of December 2012 that provided for the father to spend one weekend a month with the children.
33. In March 2013 the mother was incarcerated for three months for breaches of her parole in that she had not completed her community service hours with the Salvation Army. The mother had been extensively involved in services in the H Town area including with the Department of Family and Community Services, a methadone program and a drug and alcohol service.
34. The children were placed in foster care by the Department and returned to the care of the mother following her release.
35. In February 2014 the mother was involved in a serious car accident and sustained significant injuries to her right leg. Once again the children were placed in care by the Department with an expectation that that care would end by early May 2014.

The father’s mental health

36. Meanwhile the father in December 2012 ceased participating in his long-term methadone program at a clinic in Suburb I. Subsequently he was admitted to J Hospital for voluntary detox in mid-January 2013, discharging himself against medical advice. By this time the father was continuing to use heroin and illegal methadone and had a long-term dependence on benzodiazepine. He was admitted again for voluntary detox in early March 2013 but again discharged himself voluntarily.
37. The father was admitted again to J Hospital on 13 March 2013 for a period of about five weeks for mental health assessment after expressing suicidal ideation in consultation with his doctor. On his discharge summary the father was listed as depressed, psychotic and suicidal on admission and his admission notes record many instances of suicidal thoughts, voices in his head and his need to take opiates to stop the voices. The father’s notes reveal that he absconded twice during his inpatient treatment from the hospital and used heroin during his absence. The father was referred to the local community mental health centre after discharge but failed to engage with that centre.
38. Historical notes in relation to the father reveal him presenting to hospital in March 2001 and October and December 2006 with similar history to that of his 2013 admission. The father’s first contact with the psychiatrist was when he was in custody in L Prison in 1994.
39. In February 2014 the father was examined by Dr K, forensic psychiatrist (Exh B). In a lengthy and detailed report Dr K considers the father’s history and background. Dr K observed that the father’s principal symptoms appeared to be paranoid or persecutory/religious thoughts, plus auditory hallucinations. Dr K concluded that the father had a significant potential/vulnerability to return to substance abuse and that any contact with his children should only be in a supervised capacity. Dr K considers it appropriate that the father consulted a treating psychiatrist on a regular basis with that psychiatrist to be in a position to notify the Court or relevant authorities should there be any significant deterioration in the father’s mental state or his compliance with treatment recommendations. It is of note in the context of these present proceedings that there is no evidence that the father has so engaged with a treating psychiatrist.
40. Dr K observed that the father needed to enter into a total sobriety from all illicit and prescription drug abuse as those substances, illicit substances in particular, will aggravate/precipitate further episodes of psychosis.
41. In late 2014 the father entered into a residential rehabilitation program in Brisbane but left after a short time. He was unable to provide any clear pathway to the family consultant as to his plans for drug rehabilitation nor was it possible for the family consultant to clarify any details of the father’s current mental health treatment with enquiries resulting in long rambling statements from the father complaining that he heard voices in his head, or that he wanted to kill the children or that people were alleging he was a paedophile or that he was a schizophrenic when he wasn’t.

The mother

42. In the first Family Report dated 6 August 2013 the family consultant observed “it is extremely clear that there are serious child protection concerns in relation to both parents in terms of the history and risk with drug abuse, violence, crime and mental illness”.
43. The mother reported to the family consultant her drug history as being addicted to heroin from the age of 16 to 21, as well as using speed from 14 to 16 explaining that she had been on a methadone program for the seven years prior to the report. The mother further reported a history of depression and anxiety and post-traumatic stress disorder relating to a sexual assault in 2004. The mother reported that she had been seeing the community mental health service in Q Town since relocating to that area.
44. The mother gave a history of different medications and those medications having been changed while she was in custody.
45. At the time of the mother’s motor vehicle accident in early February 2014 caseworkers from the Department attended at the mother’s house. They located a number of syringes and needles in the garbage bin in front of the house raising concerns about the risk of ongoing drug abuse by the mother. Subsequent assessments were completed by the Department and on 10 April 2014 it was resolved that it would be unsafe to return the children to the care of the mother. On 16 April 2014 the children were placed into respite care with the paternal aunt and paternal grandmother in Sydney.
46. In subsequent interview with the family consultant for the purposes of an updated Family Report in November 2014 the mother acknowledged her abuse of morphine as a result of her use and access to painkillers following her motor vehicle accident. The mother had entered a seven-day detox program at M Hospital in early October 2014 but discharged herself early.
47. In November 2014 the mother was awaiting further significant surgery on her ankle. Following that surgery it was her intention to enter a four-month live-in rehabilitation program in Sydney and thereafter a long-term rehabilitation program for a period of about 12 months at N Town in New South Wales.
48. The mother conceded to the family consultant that she was fooling herself that she was ready to be caring for the children again.

The updated Family Report

49. The updated Family Report dated 26 November 2014 is Exhibit A.
50. The family consultant was of the view that the Department holding sole parental responsibility was a very appropriate outcome notwithstanding either parent’s proposal to the contrary. Further the family consultant was of the view that it was completely unrealistic to be hoping that paternal family members would be able to manage the arrangements for the children to spend time with the parents without the assistance of the Department as they:

…would be overwhelmed by the challenges of dealing with either one or both of the parents in a very short time. Both [Mr Eliot] and [Ms Dent] have long histories of struggling with boundaries and respectful behaviour and communication, as well as criminal acts, and it would be a completely untenable situation for anyone other than the Department to manage these interactions and arrangements.

The Department

51. The Department relied upon the affidavit of the case worker Mr O filed on 25 January 2016. Much of the background of this matter is referred to above.
52. Between 7 May 2014 and 14 May 2015 the child D was living in the care of the paternal aunt, Ms R, and thereafter the child has been transferred to short-term carers. The older children and B and C have been residing with the paternal grandmother, Ms E in Sydney.
53. Casework with the mother: the Department’s engagement with the children in these proceedings is referred to above. The mother’s drug testing urinalysis in May, June and July 2014 were positive for benzodiazepine, although it appears this was as a consequence of the mother taking prescribed medication although there was some suggestion that the mother was abusing this prescribed medication. This resulted in a recommendation from a Dr P that the mother picks up her medication on a daily basis with takeaway doses only when she receives methadone and that such pickup be undertaken at one pharmacy only.
54. On 27 October 2014 the mother provided urine samples that tested positive for opiates. In early November 2014 the Department became aware that the mother had been admitted to hospital. On 7 November 2014 the caseworker attended M Hospital and was informed that the mother had discharged herself from hospital while she still had a “pick line” inserted to direct a line of antibiotics to her heart. The mother later that day attended at the hospital and was transported to H Town Base Hospital to have the pick line removed.
55. On 18 November 2014 the mother informed the Department’s caseworker that she had relapsed and had used morphine that resulted in her being blacklisted from the residential drug rehabilitation program but was still engaged on an outpatient basis. At this time the mother indicated to the caseworker that she had proposals to move to Sydney to live with her father and his partner. The maternal grandfather and his partner informed the caseworker they were unaware of any such proposal.
56. In early February 2015 the mother was evicted from her rented premises and commenced living in a refuge. In late March 2015 the mother informed the caseworker that she was residing with her sisters.
57. The Department was informed on 27 March 2015 that the mother’s recent urine analysis resulted in positive results for methamphetamine, clonazepam and cocaine. The mother ceased engagement with the drug rehabilitation program on 6 April 2015. Thereafter there was some doubt as to the mother’s residential circumstances and the mother’s engagement with the Department became somewhat erratic.
58. In May 2015 the Department suspended the children’s time with the mother due to the mother’s unreliability in relation to her attendances. The Department sought undertakings from the mother in consideration of which time with the children would recommence. The mother has failed to sign the undertakings and her face-to-face time with the children has remained suspended. However she has had some telephone contact with the children on a fortnightly basis.
59. In about August 2015 the mother fell pregnant and that unborn child is presently of interest to the Department. On 22 December 2015 the Department received a risk of harm report in relation to the mother’s unborn child that included concerns that the mother may have relapsed on methamphetamine and heroin.
60. On 14 January 2016 the Department received a further risk of harm report in relation to the mother’s unborn child that informed the Department that the mother had been arrested for stealing. The mother’s engagement with the Court confirmed that indeed the mother was in custody and eligible for parole in late March 2016 subject to further charges that would be the subject of sentencing on 7 March 2016.
61. Casework with the father: the Department’s primary engagement with the children is referred to above. The father’s engagement with the Department has been on and off. Initially difficulties were confronted in regular contact with him and the arrangement of urine analysis. He spent short periods with the children in May, July, August and September 2014 and then February 2015 through to July 2015 on a monthly basis. Thereafter the father had contact with the children in September 2015 and December 2015 and he has continued to have telephone contact with the children about once each fortnight.
62. The children: in early October 2014 the paternal grandmother and paternal aunt informed the Department of their concerns about being able to provide a long-term placement for the children. During 2015 the Department made efforts to locate a long-term placement for all of the children together with duly authorised carers but without success.
63. In mid May 2015 the child D was moved from the paternal aunt’s care to his current carers. There have been ongoing discussions with the paternal grandmother as to future care arrangements for the two elder children and it was hoped that they might be placed with the same carers as D. That arrangement proved impracticable for the carers but it is proposed that they would remain long-term carers for D and facilitate him spending time with the other two children.
64. It is clear that the Department’s engagement with these children is a work in progress.

Non-parent applicants

65. Section 65C of the Family Law Act 1975 (Cth) (“the Act”) provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders.
66. The Department clearly falls within the ambit of the section. Further, having regard to the circumstances of the children both historically and at present where the children are presently in the Department’s care it is clear that it is also concerned with the care, welfare and development of the children. The Department is able to apply for parenting orders.

76. Consideration of the Department as non-parents in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration in s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”.

78. It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:

… there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). …

79. The Full Court in Yamada & Cain [2013] FamCAFC 64 said:

19. … It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions do not apply to non-parents. …

…

21. It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear “indication of the weight to be attached to the child’s relationship with a person other than his or her parent compared with the child’s relationship with the natural parent …” (Mulvaney & Lane [2009] FamCAFC 76; (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that “in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents ‘fall away’” (original emphasis). …

…

25. In Donnell, the Court went on to say …

However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.

We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” …

80. As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said:

… all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. …

81. Finally, the Full Court in Yamada & Cain (supra) said at [27]:

The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

101. The nature of the children’s relationships with the parents and the Department is discussed above. This consideration is supportive of the children being in the care of the Department.
102. The failure of the parents to engage in decisions relating to the children is patent. Their lack of engagement is fundamental to the present application.
103. The Department has assumed the primary obligation to maintain the children with no evidence that the parents have made any contribution.
104. The children have been in their present living circumstances for some time and no changes are proposed to those arrangements save for a proposal to place the older two children ultimately with long term carers.
105. The children’s relationship with the parents will be subject to agreement with the Department. There is no practical difficulty or significant expense in the children spending time with and communicating with the parents. However the nature and extent of the parent’s willingness to engage with the children is at best problematic in the foreseeable future.
106. Parental capacity is also a fundamental aspect of these proceedings where both the mother and father have demonstrated little capacity to meet the children’s needs including the children’s emotional and intellectual needs. On the other hand the Department has stepped in and demonstrated a most appropriate capacity in this regard.
107. The parents have demonstrated a startlingly poor attitude to the children and to their own responsibilities of parenthood. It is fortunate for the children that the Department has engaged in these proceedings.
108. There was family violence in the relationship between the mother and father with the children or either of them being exposed to risk as a consequence of their parents’ behaviour.
109. The long term protection of these vulnerable children requires that an order be made with a view to avoiding the institution of further proceedings. However the Department is a non-parent and even though the children will reside as directed by the Department into the foreseeable future, circumstances may be such that at some indeterminate time either or both parents may get their lives in order such that they may be a eligible for consideration as the primary carer or carers for the children.
110. There is no other relevant fact or circumstance.
111. Orders will be made as sought by the Department and as agreed between the Department and the father and as not opposed by the mother.